Estate of McGraw v. Cornell University

Section 2568 of the Code of Civil Proceedure provides that “ any party aggrieved may appeal from a decree or an order of a Surrogate’s Court in a case prescribed in this article; ” * * * and section 2570 provides that £‘an appeal to the Supreme Court may be taken from a decree of a Surrogate’s Court, or from an order affecting a substantial right, made by a surrogate; ” * * * and section 2576 provides that “ the appeal may be taken upon questions of law, or upon the facts, or upon both. If it is taken from a decree rendered upon the trial, by the surrogate, of an issue of fact, it must be heard upon a case to be made and settled by the surrogate, as prescribed by law for the making and settling of a case upon an appeal in an action.”

In virtue of these sections the appeal in the case now comes before us for consideration upon the law and the facts, for it is provided in section 2586 that “ where an appeal is taken upon the facts, the appellate court has the same power to decide the questions of fact which the surrogate had; and it may, in its discretion, receive further testimony or documentary evidence and appoint a referee.” And section 2587 provides that “the appellate court may reverse, affirm or modify the decree or order appealed from a,nd each intermediate order, specified in the notice of appeal, which it is authorized by law to review, and as to any and all of the parties; and it may if necessary or proper, grant a new trial or hearing,” and section 2545 provides that “ an exception may be taken to a ruling by a surrogate, upon the trial by him of an issue of fact, including a finding or a refusal to find, upon a question of fact, in a case where such

These sections have recently been brought in review and construction given thereto by the Court of Appeals in Hewlett v. Elmer ( 103 N. Y., 156 ), and the rule laid down that that court will not review a question of fact depending upon conflicting evidence, but that the Supreme Court has the power and it is its duty “ to decide the questions of fact which were before the surrogate,” thus reaffirming the rule as stated in Davis v. Clark ( 87 N. Y., 623 ), and several other cases referred to in the opinion in Hewlett v. Elmer. Therefore, a review of the evidence, as given in the opinion of Mr. Justice MerwiN, in this case, is proper in this court; and as I concur in the conclusions of law stated in that opinion, as well as in his conclusions upon the facts, I must give my assent to a reversal of the decree of the surrogate. I think the decree should be reversed on the ground that Cornell University, at the time of the death of Jennie McGraw-Fiske, had reached the limit of its charter and was not entitled to take or hold any of the property or funds given to it by her will, and the proceedings should be remitted to the surrogate with directions to make distribution of the funds .and property remaining in the hands of the executor, together with any advances and payments heretofore made by him to Cornell University, to the appellants according to their rights as they shall appear, with costs to the appellants, payable out of the fund.

The main contention of this appeal is over the question whether Cornell University had, on the day of the death of Mrs. Fiske, capacity

By section 5 of the charter of Comen University (chap. 585 of the Laws of 1865), it is provided that “ the corporation hereby created may hold real and personal property to an amount not exceeding three millions of dollars in the aggregate.” This amounted to a prohibition against holding in excess of that amount. (People v. Utica Ins. Co., 15 Johns. 383 ; Crocker v. Whitney, 71 N. Y., 167 .) The claim of the appellants is that the prohibition against holding is, in effect, a prohibition against taking beyond the amount that can be held, and that the university at the time of the death of Mrs. Fiske, held and owned real and personal property up to its full limits, and as it can not hold any more it can not take any more. The claim of the respondents is (1) that the limitation against holding does not prevent its taking without limit as against everybody except the State; and (2) and that the university does not hold, within the meaning of the limitation clause of the charter any of the proceeds or avails of land scrip issuod to the State of New York, under the act of congress (chap. 130 of the Laws of thirty-seventh congress, second session, approved July 2, 1862), and that, deducting such proceeds, the limits of its charter would not be exhausted by the entire bequests to it by Mrs. Fiske.

It is a well established principle that property not effectually disposed of by will passes to the heirs or next of kin, and this, too, although the failure of disposition arises from the incapacity of the party named as legatee to take. ( White v. Howard, 46 N. Y., 144 , 170; McCartee v. Orphan Asylum Society, 9 Cow., 438 ; Van

In the first section of its charter it is provided that the university “shall have all the rights and privileges necessary to the accomplishment of the object of its creation as declared in this act, and in the performance of its duties shall be subject to the provisions and may exercise the powers enumerated and set forth in the second article of the fifteenth chapter, title one, of the Revised Statutes of the State of New York.” That article is “of the powers and duties of the trustees of colleges’’and in section 36 it is provided that “the trustees of every such college, besides the general powers and privileges of a corporation, shall have power: 4. To take and hold, by gift, grant or devise, any real or personal property, the yearly income or revenue of which shall not exceed the value of twenty-five thousand dollars.” This standing alone undoubtedly operated as an authority and a limitation, and would be so construed were there no other provision on the subject. Construing it in connection with section 5 of the charter already quoted, if talcing and holding are to be deemed essentially different, then, strictly speaking, there was power to take an amount the yearly income of which shall not exceed $25,000, and power to hold an amount not exceeding $3,000,000 in the aggregate. But no such result was designed. The charter provision would control, which is not by way of additional power, but gives the whole rule on the subject, and the right

It may be said with considerable force that if the university has no power to hold, it has no power to take. If there is a restriction on the former, and still there be given or left, at the same moment, a full power to take, the restriction would be nugatory. For if one can take he must necessarily hold. So that if we should assume a design to produce an effectual restriction upon holding a restriction upon taking would necessarily follow. This was the view taken in the Bank of Michigan v. Niles (1 Doug. [Mich.], 101), where it was held .by the Supreme Court of Michigan that a restriction in the charter of the bank taking away the capacity to hold operated to take away the capacity to take. The action was for the specific performance of a contract to convey real estate. A similar doctrine seems to have been held by the Supreme Court of Missouri in a similar case. (Pacific R. R. Co. v. Seely, 45 Mo., 212 .) But it is not necessary to go so far as that in order to sustain the idea of limitation on taking, unless the statutes of 1840 and 1841, hereinafter referred to, may affect the question. For in view of the provision of our statute providing that corporations have no powers beyond what are awarded by the statute or the charter, then it must be said that the corporation has no power to take except what may be inferred from the right to hold, which is limited, or from the provision of the Revised Statutes which is embodied in the first section and is itself limited. It is not entirely clear why the expression “to hold ” is only used. Very evidently it might have been expected that the corporation would, in preparing for and carrying out the object of its existence, make large expenditures, and for that purpose would from time to time have to acquire large sums, not for accumulation but for use and outlay; so that the aggregate might exceed the limit named, but the amount at any one time in

But it is argued, on the part of the respondents, that under the provisions of chapter 318 of the Laws of 1840, as amended by chapter 261 of 1841, the university has full and unlimited power to take in the absence of any prohibition in the charter. By those acts it is provided that real and personal property may be granted and conveyed, devised and bequeathed, to any incorporated college or other literary incorporated institution in this state, to be held in trust for any specific purposes comprehended in the general objects authorized by their respective charters, and that all property which shall thereafter be so granted may be held by such institution upon such trusts. No limit was specified in those acts. The argument is that those acts operated to modify the provision of the Revised Statutes, prohibiting devises to corporations, and in effect conferred on the university, as a literary incorporated institution, the power to take by devise as well as by grant and bequest “ all property ” in trust for any specific purpose within the sphere of its corporate power under its charter; that this power is not restricted by the provisions of the article adopted by section 1 of the charter, as the rule on the subject of. limitation is given by section 5, and as such adoption is only to the extent that shall be necessary to “the performance of its duties” as a university; and that this power can exist consistently with the existence of the limitation on holding in section 5, and it is, therefore, said that the university “ could take the entire bequest given in the will, regardless of the charter limitation, but it could only hold any excess over such limit with the consent of the State.” Perry on Trusts (vol. 1, § 45) is cited, where the rule is broadly stated: “ If a corporation takes land by grant or bequest in trust, or otherwise, which by its charter it cannot hold, its title is good as against third persons and strangers; the State only can interfere.” This rule, as well as the argument of the learned counsel, is based on a series of decisions, having their origin in the law held applicable to the English mortmain acts. Under these acts Green’s Brices Ultra Vires, 10) it was held that alienations in mortmain, without license from the crown, were not

There is a wide distinction between the case at bar and cases where there has been a grant to a corporation for a valuable consideration, and the grantor seeks to avoid on the ground that the power of the corporation to take is exhausted (Christian Union v. Yount, 101 U. S., 353 ), or where property has been used for purposes different from those allowed by charter (Barrow v. Nashville and Charlotte T. Co., 9 Humph., 304 ), or obtained when not necessary for its business (Cowell v. Springs Co., 100 U. S., 56 ). or cases where national banks have taken securities not authorized by the law of their incorporation. (National Bank v. Matthews, 98 U. S., 621 ; National Bank v. Whitney, 103 id., 99; reversing Crocker v. Whitney, 71 N. Y., 161 .) The element of estoppel would seem to be strongly applicable in such cases. In 3 "Washburn on Beal Property (4th ed.), 267, the rule is stated that if a corporation, by an original purchase, exceeds the prescribed amount, nobodv but the State can interfere.

The English mortmain acts were not re-enacted in this State (2 Kent, 282); they were certainly not in force here after May 1,1788. Chapter 46 of the laws of that year, last section, provided that after that date none of the statutes of England or of Great Britain shall operate or be considered as laws of this State. So that arguments drawn from the policy of those acts would be of doubtful application here.

The Court of Appeals, in the Chamberlain case, has given us’ some law on the subject, which must, of course, control our action. That was an action brought by one of the heirs-at-law and next of kin of Benjamin Chamberlain, deceased, to determine, among other things, whether a bequest to the Chamberlain Institute was valid. That institute was a literary institution, incorporated under the laws of this State, and having the power, under the Revised Statutes, to take and hold by gift, grant or devise (1 R. S., 462, § 42) real or personal property, the clear yearly income or revenue

The Chamberlain case, in effect, takes the State out as a factor in the controversy, and establishes the right of the heirs and next of kin to take advantage of any transgression of the law, which, in this case, is holding beyond the special amount. If so, the proposition is [reduced to this: The corporation can take, but cannot as against the heirs and next of kin hoid beyond the limit. If so, there is no effectual right to take beyond the limit. It is further suggested that the corporation can take, but not hold against the.State only, in the same manner that an alien can take a title good as to everybody, but the State. It is sufficient, perhaps, to say that this was presented in the Leazure case as a reason for the rule there held, and that the Court of Appeals in repudiating the rule of the Leazure case, in effect, held that the argument from analogy was not applicable. The policy of our State on the two subjects is different. We, therefore, do not see our way clear to hold that the corporation can take without limit and hold against everybody but the State, but we must hold that the corporation cannot against the appellants take beyond its capacity to hold under its charter, and that capacity must be determined as of the date of the death of Mrs. Fiske. (White v. Howard, 46 N. Y., 167 ; Hollis v. Drew Theo. Sem., 95 id., 166.)

We now come to the question as to the amount of property held by the university. The surrogate has found that on the 30th of September, 1881, Cornell University held and owned property derived from individuals to the amount of $598,588.65; that it held and owned property derived from the nation and State to the amount and value of $2,088,012.78 (made up of western land contracts $439,884.22, western lands $1,648,178.56) but that this item was due or payable to the State. The university also held the “ Cornell endowment fund,” so called, amounting to $128,596.61*

The claim of the appellants is that all these classes of property were the property of the university within the meaning of the statutory limitations. The claim of the respondents is that none were such property except the first. All except the first have origin in land scrip donated by the United States to the State of New York by the act of congress, approved July 2, 1862.

By this act, which is entitled “ An act donating the public lands to the several States and territories which may provide colleges for the benefit of the agricultural and the mechanic arts,” there was granted to the several States, for the purpose therein mentioned, an amount of public land equal to 30,000 acres for each senator and representative in congress. In case there were within any State public lands subject to sale at a certain rate, provision was made for "selecting from such lands the amount to which that State was entitled; but as there were no such lands in this State, the provisions on that subject are not here important. In other cases it was provided that land scrip should be issued to the amount to which the State was entitled, “ said scrip to be sold by said States and the proceeds thereof applied to the uses and purposes'prescribed in this act, and for no other use or purpose whatsoever; provided, that in no case shall any State to which land scrip may thus be issued be allowed to locate the same within the limits of any other State or of any territory of the United States, but their assignees may thus locate said land scrip upon any of the unappropriated lands of the United States subject to sale at private entry at one dollar and twenty-five cents or less per acre.” All moneys derived from the sale of such land scrip “ shall be invested in stocks of the United States, or of the States or some other safe stocks, yielding not less than five per centum upon the par value of said stocks, and the moneys so invested shall constitute a perpetual fund, the capital of which,” except that a sum not exceeding ten per cent of the amount recived by.any State may be expended for the purchase of college sites or experimental farms whenever authorized by the legislature of the State, “ shall remain forever undiminished, and the interest of which shall be inviolably appropriated by each State whiah may

The State of New York by chapter 460 of 1863, in substance accepted the grant with its conditions, and authorized the comptroller to receive the land scrip, and, with the approval and concurrence of certain other State officers, to sell the same or any part thereof. There was-no direction as to price. The legislature the same year passed an act (Chap. 511) giving to the people’s college at Havana the benefit of the income of the expected fund upon certain conditions. In due time the comptroller received scrip representing 989,920 acres. Of this 76,000 acres were sold in 1864 at about eighty-five cents per acre, realizing $64,440, when, as reported to the legislature of 1865 by the comptroller, sales almost entirely ceased in consequence of other States reducing the price to a much lower rate than that at which it was held by this State. The people’s college was apparently unable to comply with the conditions upon which its right to the income of the fund depended. Thereupon, April 27, 1865, the act (chap. 585), was passed incorporating Cornell University. It provided among other things, that the farm and grounds to be occupied by the corporation, whereupon its build

The People’s College did not succeed in perfecting their right to the benefit of the fund, and Cornell University did comply with the conditions imposed on it.

In 1866, the comptroller reported to the legislature that during the year ending September 30, 1865, no sales of land scrip wei’e made, but that after that date 100,000 acres had been sold to Ezra Cornell for $50,000, upon the condition, that all the profits which should accrue from the sale of the land should be paid to the Cornell

No application for the purchase was made by the trustees or by any one except Ezra Cornell, and with him a contract was made, dated August 4, 1866. By this the State, through the commissioners of the land office, agreed to sell to Cornell the balance of the land scrip, he to receive the same in parcels representing not less than 25,000 acres, and paying into the treasury of the State, at the time of the transfer, at the rate of thirty cents per acre in money or certain securities, and at the same time depositing with the comptroller certain securities to an amount equal to an additional thirty cents per acre, as security for the performance of other portions of the contract. Cornell agreed to purchase the whole scrip and select and locate lands under it within four years, and to sell the lands

On May 4,1868, the legislature passed an act (chap. 554), authorizing the investment of moneys belonging to the Cornell endowment fund on bond and mortgage and provided that “ the said fund and the interest and income thereof, subject to the expenses of the care and management of the same, shall be held for and devoted to the purposes of the said Cornell University, in pursuance of the contract before mentioned,” being the contract dated August 4,1866. In 1869, the comptroller (Judge Allen) reported to the legislature that he had declined to loan the Cornell endowment fund on bond and mortgage, on the ground that it was a part of the purchase-money of the lands donated by the act of congress, and, therefore, subject to the restrictions of that act, which did not allow that manner of investment. lie considered the transaction with Mr. Cornell in the nature of an agency for the State and not a sale. The opinion of the attorney-general was submitted, talcing the same views substantially, The legislature seems to have talcen no action except that it appropriated the income of the Cornell endowment fund to the Cornell University, expressing it to be pursuant to chapter 554 of the Laws of 1868. (Session Laws of 1869, chap. 1542.) The appropriation was made the same way in 1870 (chap. 281; 1 Session Laws, 632); in 1871 (chap. 718 ; 2 Session Laws, 1613), and in 1872 (chap. 541, 2 Session Laws, 1252). In 1873 a concurrent resolution was adopted (Session Laws, 1409), authorizing the governor to appoint a commission of three persons to inquire into the condition of the college land grant, and, particularly, among other things, whether the act of congress and the act of the legislature of 1863 were complied with in the sale; what securities could be taken and whether the charges of Mr. Cornell for expenses of location, management and sale could be deducted from the proceeds,

.'At the date of the contract, August 4,1866, the college land scrip fund was $114,440, being derived from the sales of scrip to the amount of 176,000 acres. There was left of scrip 813,920 acres. This was all transferred to Cornell under the contract prior to October 13, 1874. He had sold in scrip or located land to the extent of 381,920 acres, and had paid to the comptroller sixty cents an acre thereon, thereby increasing the land scrip fund to $343,592, and had also paid to the comptroller the balance of the proceeds, being $128,596.61, which then constituted the Cornell endowment fund. The balance of the scrip, 432,000 acres, Cornell had located and still held the land, the first thirty cents an acre being secured to the comptroller but not paid. At that date, October 13, 1874, Cornell University, with the consent of the comptroller and commissioners of the land office, took the deed of said lands from said Cornell, assumed all his obligations in said contract and paid the comptroller $129,600 in cash, being the first thirty cents an acre of said lands, thereby making the land scrip fund $473,192. The other thirty cents an acre had not been paid to the comptroller at the time of the death of Mrs. Eiske. Of those lands so conveyed to the university there remained unsold, on the 30th of September, 1881, 310,076.49 acres, of the value, as found by the surrogate, of $1,648,178.56, and the university also held land contracts for land thus transferred by Cornell and afterward sold by the university, to the value of $439,834.22, being items hereinbefore stated. The market-price and value of the scrip on the 4th of August, 1866, is found to-have been sixty cents per acre.

. On the 18th of May, 1880, the legislature passed an act (cnap. 317), by which the comptroller was authorized and directed, upon the request of Cornell University, to assign, transfer, pay and

These are the main facts in regard to the origin of thi& property. The question .of ownership, so far as the State is concerned, depends on the construction to be given to the contract of August 4, 1866. This contract has never been repudiated by the State; we cannot assume that it ever will be, even if it could be. The State officers who . made it, assumed that the profits that might arise from the transaction to the purchaser would not be a part of the' purchase-price of the scrip, and, therefore, in the contract those profits were not made subject to the restrictions of the act of congress. The legislature deliberately accepted this view and ratified the contract,, when in 1868 they authorized other kind of investment for the endowment fund, and provided that that fund should be held for and devoted to the purposes of the university in pursuance of the contract. And thereafter, although State officers of high positions and learning doubted the validity of the act and hence of the contract, still the legislature for four successive years by its appropriations, in terms, in pursuance of the act of 1868, ratified that act and the contract. Then in 1873 and 1874 when, upon investigation by an able commission, the question was sharply raised as to the character of this fund, and a majority of the commission held that the profits were a part of the price and the whole belonged to the State as a trust fund, still the legislature, apparently preferring the views of the minority of the commission, took no action toward setting aside the contract, but continued to recognize the separate character of the endowment fund and made appropriations from it to the university. Then in 1880 the whole, being recognized as a fund belonging to the .university, was transferred to it, unconditionally, thus boldly violating the act of congress, provided that act had anything to do with the profits arising to the purchaser upon a sale of the scrip. There can, therefore, be no doubt about the position of the State as to the contract. It considered itself

Under the contract, this endowment fund and all property that by it was to make a part of that fund, which would include the items western lands and contracts hereinbefore stated, as derived by the university from the State and nation, were declared to be the property-of the Cornell University. This was so declared purposely and very apparently upon the idea that it should not be considered as a part of the price of the scrip and, therefore, subject to the act of congress. This was one of the considerations and, perhaps, the main one for the undertaking of Mr. Cornell. He was to devote time and money largely to the enterprise, not upon a certainty, but on 'a contingency. He was hopeful, but there was no one else ready to undertake- it.. He was willing to risk it, provided the profits should be deemed a donation, not from the United States to the university, but from himself. And the State was willing to be the custodian. The separation of the two funds in the contract indicates clearly the design. True, it was to be paid over to the State, but only in trust' for the university and for its use. The university was the sole beneficiary. It then was the equitable owner, as it afterwards became also the legal owner. We see no way to escape from the conclusion that under the contract this property was, as the contract says, the property of the university, and if so, was not a part of the trust fund, subject to the act of congress.

Hut did the State have authority to make such a contract ? Under the act of congress this State received only scrip. This it had no right to locate, all it could do was to sell it. The proceeds' of the sale were to be applied to the uses and purposes prescribed in the act and for no other use or purpose. The manner of the sale was not regulated ; it was assumed that each State in that regard would look out sufficiently for its own interests. It was not bound to sell at auction ; it could select its purchaser if there was more than one who wanted to buy. If Mr. Cornell was willing to take all the risks and give the university all the benefits, if any, there was nothing to prevent the State helping to carryout that object. The sale, in substance, was to Mr. Cornell and the university together, the one bearing all the burdens and the other taking all the profits. And the fact that the State was made the custodian of these profits

But it is said that the university now owes the State the full amount of this property under the contract. Not so. At most all it owed to the State was the custody. That was all Cornell agreed on this subject to give the State. The purchase-price is one thing, and some restriction on the use of the property or on the disposition or custody of the profits is another. The profits naturally belong to the purchaser. He had the right, as in this case, to give them to another party, not the State. The State has surrendered its right to the custody. Whether it can resume it or not is not important here to determine. The ownership is in the university. It does not appear that the general government has ever made any question about the matter, and it therefore may, perhaps, be said that the question before us should be determined solely by the situation as in fact existing between the State and the university. Be that as it may, we are of the opinion that the western lands and contracts and endowment fund held by the university on the 30th of September, 1881, must be reckoned as a part of its property under the limitation of its charter, subject, however, to the deduction of

The situation of the college land scrip fund is different. That is the trust fund contemplated by the act of congress and is not the property of the university. The income of it is, however, payable to the university without limit as to time, and therefore it is claimed that the interest of the university in that fund is equal in value to the whole fund, in analogy to the theory that a party who is entitled to the rents and profits of property forever is entitled to the property. Still the facts remain that the principal is a trust fund and does not belong to the university. The income is received from time to time, not by virtue of an established, perfected grant or gift, but rather in consideration of the performance of continuous duties and services. By the act under which it receives the income it was obligated to have its buildings and equipments prepared and kept suitable for certain objects, and to furnish tuition free to a certain extent. These burdens it assumed in consideration of its receiving the income, and they will continue as long as the income continues. The exact amount of the annual expense arising from these burdens is not shown; we cannot assume it to be less than the income or more for that matter. We must rather assume that the one was deemed to be the equivalent of the other; or, perhaps, more properly, that the income was given, and the corporation also allowed to hold property to a certain extent, altogether for the purpose of the performance of all its duties and obligations and the accomplishment of all its objects as contemplated by its charter. In this view, the amount of the college land scrip fund should not be reckoned as part of the charter limitation. This conclusion makes it necessary to consider a question presented by the appellants as to the valuation of the university grounds and buildings. In the list of property described as funds derived from individuals and aggregating $598,588.65, there is the following: “The farm and grounds on which the university buildings are located, consisting of about 260 acres, including the buildings and reservoir, $69,683.33.”

It is claimed by the appellants that the court below in making this valuation adopted an erroneous rule, and that under the correct rule the value, upon the evidence, would be at least half a million. The estimates of the witnesses on the part of the respondents were

The present question is not what is the value of the property for the purpose of its division or distribution as part of an estate, but its value as property held, not for traffic or disposal, but for the purposes of the corporation. The limit is not according to income; and it therefore may be inferred that the aggregate is to be made up without reference to income. The'charter, containing the limit, contemplated that large expenditures would be made for buildings, still those were not excluded from the limit. The buildings in fact constitute the chief intrinsic value, represented by. the item under consideration. Are they to be disregarded substantially in fixing the value ? Gan such an intent be fairly attributed to the legislature? Here are buildings that concededly are adapted to and necessary for the uses and purposes of the institution. They are comparatively new; the cost of their erection was in the neighborhood of $600,000. If destroyed they would have to be replaced if the objects of the institution were carried out.. An insurance is carried upon them of about $400,000. Their value, if based on their present cost less the difference between new and old, would, according to the estimates of the appellant’s witnesses be $500,000 and upwards. The statutory limitation must be reasonably construed. Will it be, if this main element of present value be disregarded and the value determined, not upon the property as it now is, but upon it in a condition not existing or expected to exist? Can funds be obtained and laid out, without .limit, for necessary buildings that are worth to the corporation all they cost, and still nothing, or comparatively nothing, be held under the statutory limit? We think not. If such a result was designed the statute would have said so. It looks to us reasonably clear that an erroneous rule was adopted in the court below.

For the purposes of the statute we think the test is, generally, the value of the property as then held and used by the corporation. Assuming adaptation and necessity and no market value, then it would be the value for university purposes, which would be substantially represented by the present cost of building, less difference between new and old. Evidence was given on this basis by thé .appellants, but not by the respondents. If the respondents should desire an opportunity to present such evidence, we think they should have it. But we infer from their brief that, in case their .rule .as to valuation was held to be incorrect, they would be content to have .this court fix the valuation, so far as it was here material, .on the evidence already in the case. Upon 'that assumption we think that the appellants would be entitled to the finding that the property, .represented by the item $69,683.33, was at the date in question of the value of at least $385,000. That sum with the other items would exhaust the limit of the charter. Some other questions are presented in relation to the rights of the appellants .as between .each other. These it is not important for us to consider .as it was stated on the argument that the appellants had by stipulation harmonized and adjusted their conflicting interests. No .point seems .to be made by the university, on the conveyance of Mr. Fiske to the executor of date October 9, 1882.

.The foregoing conclusions lead to a reversal of the decree .appealed from, on the ground that Cornell University, having at the date of the -death of Mrs. Fiske reached the statutory limit, had not capacity to take the legacies given to it in the will of .Mrs. Fiske. . "

Follett, J., concurred.